143 Conn. 138 (1956) | Cited 54 times | Supreme Court of Connecticut | January 24, 1956

On a trial to the jury, thedefendant was found guilty of rape. From thejudgment rendered on that verdict he has appealed.His assignments of error are numerous but can begrouped in five categories. He claims error,first, in the court's refusal to allow questionson the voir dire concerning possible raceprejudice on the part of prospective jurors;second, in various rulings on evidence; third, inthe denial of his motion for a mistrial; fourth,in the charge; and lastly, in the court's conduct,which he maintains was so prejudicial to himthroughout the whole trial that it constituted adenial to him of due process of law. There is nomerit to any of these claims of error except thefirst.

[143 Conn. 140]

The defendant is a Negro. His alleged victim isa white woman. The printed record contains excerptsfrom the examination on the voir dire ofsix of the veniremen. To the first of these, thedefendant's attorney propounded the question:"Would it require any less evidence for you tofind a Negro person guilty of such a crime [rape]than it would to find a white person?" The courton its own motion ruled the question out, saying:"You can't make a distinction, you know, betweenthe temperament and mentality of the white horsesand the black horses."

To the second venireman, the following questionwas propounded: "Mrs. Herdeg, would you have anyreluctance in following any instruction the Courtmay give you as to the weight which may be givento the fact that the defendant or any witness inthis case is a Negro?" Thereupon the court said:"Now, what has that to do with it? Negroes standbefore the Bar of Justice the same as whitepeople. We make no distinction between colors in[either] the justice [or] the brand of justicewhich is given to one or the other." To the sameprospective juror was put the question: "Mrs.Herdeg, would you have any prejudice against adefendant because of his color?" The courtinterjected: "Now, I have told you before it doesnot make any difference about his color. Thequestion is whether or not any witness or anyprincipal in the case is such that this witnesswould have a prejudice against them. The colordoes not enter into it." The defendant's attorneythen said: "The color is a possible source ofprejudice and I would like to inquire of therespective -" Thereupon the court interrupted tosay: "The Court does not recognize any such thing.You can ask the questions proper to ask.

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     We recognize nobody as holding a prejudice againsta person because of his color . . . ."

The foregoing exchanges between the court andcounsel are typical of what occurred in the courseof the examination of the other veniremen. Whenevercounsel asked whether the prospective jurorhad any prejudice against a Negro so that it wouldrequire less evidence to convict him of the crimeof rape than it would to convict a white man, orasked whether the juror would be less inclined tobelieve a Negro witness than a white witnesssimply because of the former's color, the courtexcluded the question. It appears from the remarksmade by the court that its ruling was based uponthe ground that in a court of justice nodistinction should be made between Negroes andwhite persons and that, therefore, the verythought that it was possible for a juror to be soprejudiced against Negroes that he would be lessapt to believe their testimony than that of whitepersons or require less evidence to convict themshould be carefully kept from the minds ofprospective jurors.

When this case was tried, 7908 of the GeneralStatutes was in effect. It provided: "In anycivil or criminal action tried before a jury,either party may examine each juror as to hisqualifications to sit as a juror in suchaction . . .; and, if the judge before whom suchexamination shall be held shall be of the opinionfrom such examination that any juror would beunable to render a fair and impartial verdict,such juror shall be excused by the judge from anyfurther service upon the panel, or in such action,as such judge may determine."

Under this statute, any party to a jury case hadan absolute right to examine prospective jurors onthe voir dire. The information elicited by such an

[143 Conn. 142]

     examination serves a twofold purpose. In the firstplace, it permits the court to determine whether avenireman is qualified to act as a juror, and, inthe second place, it aids each party in exercisinghis right to peremptory challenges. Duffy v.Carroll, 137 Conn. 51, 56, 75 A.2d 33. It is truethat the extent to which parties may go in such anexamination rests largely in the discretion of thecourt, and the exercise of that discretion willnot constitute reversible error unless thediscretion has been clearly abused and one of theparties has been prejudiced thereby. Duffy v.Carroll, supra; Sherman v. William M. Ryan & Sons,Inc., 126 Conn. 574, 578, 13 A.2d 134; see Statev. Mendill, 141 Conn. 360, 362,106 A.2d 178. Nevertheless, in exercising its discretion,the court should grant such latitude as isreasonably necessary to fairly accomplish thepurposes of the voir dire. Clearly, therefore, ifthere is any likelihood that some prejudice is inthe juror's mind which will even subconsciouslyaffect his decision of the case, the party who maybe adversely affected should be permittedquestions designed to uncover that prejudice. Thisis particularly true with reference to thedefendant in a criminal case. Otherwise, the rightof trial by an impartial jury guaranteed to him byarticle first, 9, of the constitution of thisstate might well be impaired. See State v. Potter,18 Conn. 166, 171; State v. Wilson, 38 Conn. 126,137.

In line with this thought, it is almostuniformly held in other jurisdictions that itis reversible error in a criminal case in whicha Negro is the defendant to exclude questions,propounded by him on the voir dire, designedto bring out that a prospective juror is soprejudiced against the Negro race that it wouldtake less evidence to convince him that a Negrowas guilty of the crime charged than to convince

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     him that a white person had committed a similar crime.Aldridge v. United States, 283 U.S. 308, 313, 51S.Ct. 470, 75 L.Ed. 1054, 73 A.L.R.2d 1203 & note,1208; Pinder v. State, 27 Fla. 370, 374,8 So. 837; Hill v. State, 112 Miss. 260, 265,72 So. 1003; State v. McAfee, 64 N.C. 339, 340; Fendrickv. State, 39 Tex.Crim. 147, 150, 45 S.W. 589; Busch,Law & Tactics in Jury Trials, 119.

We cannot be blind to the fact that there maystill be some who are biased against the Negrorace and would be more easily convinced of aNegro's guilt of the crime of rape than they wouldof a white man's guilt. Especially would they beunlikely to approach in a detached and objectivemanner the decision of the guilt or innocence of aNegro charged with raping a white woman.

So long as race prejudice exists, even in arelatively few persons, there is a substantialchance that one of those few will appear in courtas a venireman. Consequently, the fact that mostpeople in the state are not prejudiced againstNegroes is not of controlling importance. Thepoint is clearly stated in Aldridge v. UnitedStates, supra, 314, as follows: "But the questionis not as to the civil privileges of the negro,or as to the dominant sentiment of the communityand the general absence of any disqualifyingprejudice, but as to the bias of the particularjurors who are to try the accused. If in fact,sharing the general sentiment, they were found tobe impartial, no harm would be done in permittingthe question; but if any one of them was shown toentertain a prejudice which would preclude hisrendering a fair verdict, a gross injustice wouldbe perpetrated in allowing him to sit. Despite theprivileges accorded to the negro, we do not thinkthat it can be said that the possibility of such

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     prejudice is so remote as to justify the risk inforbidding the inquiry."

The statute, 7908, entitled the defendant as amatter of right to examine each venireman on thevoir dire as to his qualifications to serve as ajuror. Whether or not a venireman harbored anyprejudice against Negroes as a race had, under thecircumstances of the case at bar, a very directand peculiarly important bearing on hisqualification to sit as a juror. It was of vitalimportance to the defendant that if any suchprejudice existed it be brought to light. Only socould he intelligently challenge for cause orexercise his right of peremptory challenge. Therulings excluding from the examination on the voirdire all questions concerning race prejudice werean abuse of the court's discretion. Since theyprevented the defendant from exercising hisrights under the statute, they were prejudicialto him. Consequently, the rulings constitutereversible error.

The state contends that if the exclusion ofquestions designed to determine whetherprospective jurors entertained race prejudice waserror, it was harmless because the particularjurors, the examination of whom is set forth inthe finding, were either excused by the defendantand did not sit or were accepted by the defendant.The answer to this is that by its repeated rulingsexcluding this line of questions and by itsadmonition of counsel, the court made it clearthat it would not tolerate the pro-pounding ofsuch questions to any of the veniremen.Consequently, the defendant was precluded fromfollowing this line of inquiry with all of thejurors who were selected to serve.

The state also contends that the defendant waivedany claim of error on this score. This contention isbased upon the following: Mr. Pharr, senior counselfor the defendant, was not present in court

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     during the voir dire. The examination was conductedby Mr. Marcuse, the junior counsel. Afterthe twelve jurors were selected but before theywere sworn, Mr. Pharr arrived. The court said tohim: "Now, in your absence, a jury has beenaccepted. We deferred swearing them until youcould be here today. Personally, I don't think ofany motion you might want to make, but if you wantto make any, the way is still open." To this Mr.Pharr replied: "I have none to make. I amsatisfied with the jury Mr. Marcuse has picked forus." It is obvious that at this stage of theproceeding there was no motion which Mr. Pharrcould have made with any prospect of its beinggranted. He had no ground upon which to base amotion that any of the jurors be dischargedbecause of race prejudice, because the rulings ofthe court had prevented the disclosure of suchprejudice by any of the jurors who had beenaccepted. It was, moreover, perfectly clear fromthe attitude of the court that a motion for are-examination of all of the jurors in order toinquire as to any race prejudice would have beenfutile. There was nothing left for Mr. Pharr to dobut to continue the trial to the jury alreadyselected. Under the circumstances, he was entitledto accept for the time being the rulings of thecourt in the expectation that he would assign themas error. The fact that he did accept thoserulings and say that he was satisfied with thejury cannot reasonably be interpreted under thecircumstances of this case as a waiver of anyclaim of error in the rulings.

There is error, the judgment is set aside and anew trial is ordered.

In this opinion the other judges concurred.

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